Banks v. Fenet

Filing 10

ORDER signed by Judge Lynn Adelman on 12/12/12 granting 2 Motion for Leave to Proceed in forma pauperis. Further denying as moot 8 Motion for Order and 9 Motion for Extension of Time. Further ordering that defendants shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. Further ordering that the balance of the filing fee be collected as set forth in the order. (cc: all counsel, via USPS to plaintiff and Warden-DCI) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CEASAR R. BANKS,
Plaintiff,
v.

Case No. 12-CV-1063

SANDY FENET,
Defendant.

ORDER
Plaintiff, who is incarcerated at Dodge Correctional Institution, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter
comes before the court on plaintiff’s petition to proceed in forma pauperis.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28
U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can
request leave to proceed in forma pauperis. Plaintiff has filed a certified copy of his prison
trust account statement for the six-month period immediately preceding the filing of his
complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed an initial
partial filing fee of $2.26 and paid an initial partial filing fee of $4.00.
The court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court
may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless
legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at
327. “Malicious,” although sometimes treated as a synonym for “frivolous,” “is more
usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10
(7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system, the plaintiff
is required to provide a “short and plain statement of the claim showing that [he] is entitled
to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts
and his statement need only “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic recitation of the elements of a cause of action will
not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that
is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should follow the principles
set forth in Twombly by first, “identifying pleadings that, because they are no more than

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conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he
was deprived of a right secured by the Constitution or laws of the United States; and 2) the
deprivation was visited upon him by a person or persons acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give plaintiff’s pro se allegations,
“however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff was incarcerated at Milwaukee Secure Detention Facility (MSDF) at all
times relevant, and defendant Nurse Sandy Fenet was a nurse at MSDF. Plaintiff alleges
that on June 27, 2012, he was ill and went to the medical room. Defendant Fenet took his
blood pressure but she intentionally reported that his blood pressure was lower than it
actually was, despite plaintiff’s objection. A third shift officer called another nurse to take
plaintiff’s blood pressure and it was found to be significantly higher than defendant Fenet
had stated. Two nurses then worked with plaintiff for about four hours to lower his blood
pressure and advised him that if he had returned to his cell with such a high blood
pressure, he might have died in his sleep or had a stroke. Plaintiff asserts that defendant
Fenet appeared drunk that night.

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Plaintiff claims that defendant Fenet’s lie about his blood pressure amounted to
deliberate indifference to his serious medical needs in violation of the Eighth Amendment.
He seeks declaratory relief and monetary damages.
Plaintiff may proceed on an Eighth Amendment deliberate indifference to a serious
medical need claim against defendant Fenet.
On November 5, 2012, plaintiff filed a motion for order in which he requests the
court to order Dodge Correctional Institution to send in his $2.26 initial partial filing fee. On
November 13, 2012, plaintiff filed a motion for extension of time to pay his initial partial
filing fee. However, he paid a $4 initial partial filing fee in this case and therefore, the
motions are moot.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for order (Docket #8) is DENIED
AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time (Docket #9)
is DENIED AS MOOT.
IT IS FURTHER ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of plaintiff’s complaint
and this order are being electronically sent today to the Wisconsin Department of Justice
for service on the state defendants.
IT IS ALSO ORDERED that, pursuant to the informal service agreement between
the Wisconsin Department of Justice and this court, the defendants shall file a responsive
pleading to the complaint within sixty days of receiving electronic notice of this order.

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IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from plaintiff’s prison trust account the $346.00
balance of the filing fee by collecting monthly payments from plaintiff’s prison trust account
in an amount equal to 20% of the preceding month’s income credited to the prisoner’s trust
account and forwarding payments to the clerk of the court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be
clearly identified by the case name and number assigned to this action.
IT IS ALSO ORDERED that a copy of this order be sent to the warden of the
institution where the inmate is confined.
IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and
legal material to:
Honorable Lynn Adelman
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202

PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Plaintiff is notified that from now on, he is required under Federal Rule of Civil
Procedure 5(a) to send a copy of every paper or document filed with the court to the
opposing party or, if the opposing party is represented by counsel, to counsel for that party.
Fed. R. Civ. P. 5(b). Plaintiff should also retain a personal copy of each document. If
plaintiff does not have access to a photocopy machine, he may send out identical
handwritten or typed copies of any documents. The court may disregard any papers or

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documents which do not indicate that a copy has been sent to the opposing party or that
party’s attorney, if the party is represented by an attorney.
Plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change of address.
Failure to do so could result in orders or other information not being timely delivered, thus
affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 12th day of December, 2012.
s/ Lynn Adelman
LYNN ADELMAN
District Judge

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